DISTEICT COURT, HOKITIKA.

Inangahua Times, Volume III, Issue 93, 23 March 1877, Page 2

DISTEICT COURT, HOKITIKA.

Monday, Mabch 19, 1877. (Before His Honor Judge Weston.) NOBTH STAR OOID MININft COMPANY. Application to remove from, and substitute name on list of contributories. Mr Button appeared to receive judg* ment for the liquidator. His Honor delivered judgment as follows : — ld this case William Hugh Jones, senr., applied under the 100 section of "The Mining Companies Act. 1872," that his infant son, wlio bears his own Christian names, be removed from the list of contributories ; and upon the affidavit of facts read by him, the liquidator at the same time invited the- Court to substitute Fraoklyn, the transferor, in lieu of the minor. The transfer, silent as it is as to the age of the child, was made in his favor; the father signed the child's name to the document, and I infer that upon

I the presentation or tne transfer for regis—* tratioa the real facti of the case were not? disclosed to the company, That tk4 transfer was a " sham" and M a fab!*" j that it was effected by Franklyn not £ part with bis interest, but to evait liability, is to my mind dear; and that Frankljn should therefore discharge the contribotioos assessed apoo the sbwes, the Court has already emphatically declared. Under *ach circumstances, if theCourt has power to substitute a nama for that which may be remoredv it is widen* tba| Fraoklyn's should be employed in this ease. Under section 100 a contributory can, after the settling of the lists apply to the Court for the removal of bis name, and thereupon it " stall make tuck order as shall be right? Mr Newton, for Franklyn, however, contends thai the authority of the Court is limited to removing ; on the other hand, Crossßeld and Bests cases, 20 L.J., Ch. f 125, and 303, also, 22 L.J., Ch., 208, are advanced in support of the applicationto substitute. Although the- section I have referred to i» not so comprehensive in its terms as the 17 section- of " The Joint Stock Act, Amendment Act, 184$" under which the foregoing ea<es were decided, and Rule 29- of" The English Act 1862 ;" still I think it will enable theCourt to consider and deal with the applications now before if. It appears to mechat sections 97 and 100 most be read to* gether. It might be said that " the objections and answers" to be heard under the 97th section must he ur^ed to support or disprove the liability of the par* ties, and those only who are actually entered upon the list of contributories, and that the power to settley amend, or alter the list, and to rectify the register, by thesame section bestowed, woold be qatt» consistent with such a strict interpretation ;. inasmuch as upon the esetston of an alleged contributo-y, an alteration, amendment, and rectification- must berespectively made. But even so, could it be. or indeed, has it been contended, that at that stage of the proceedings the Court would be onaWe to substitute a name for that which it. removed ? I think not. The very object of the winding- 00 pro* ceedings being to compel contribution* from- parties, equitably liable to discharge the debt of the company. Upon) what principle then, should it be de* prived" of that power, wheu dealing with an application made under section 100, subsequent to the settlement P It seems to me that practically the provision* of the two sections are identical. In most instances, and under both see* tiors, the liability of a> third party would be involved in the application for remoral by an alleged contributory ?in both cases the same parties could beheard, «nd to five effect to the onj<efctoo> the list must be altered or amended, and the register rectifi d. If, then, the power to> substitute is tak<»n to be conferred by tht> one section, I think it must be. upon the principle 1 already enunciated, bestowed by the other. Were the Court limited in ife power, as Mr Newton has argued it is, Ik removal would operate as a cuncelhtfiot of the shares, and that might rendvrwiodingjap proceedings iv ro^-^s^eji^ly abortive. In Heritage's ease, 3y t /» Ch. 239, whet« the transferor objected to his position a contributory — the name tf^ the transferee having been previously ri»H: moved from the register— Lord Komiliv remarked—" But I am asked to strike off tlv- name of Mr Heritage, the result of which would be to cancel the shares.. A* Mr Lindley very properly pointed out, the result would simoly be to cancel theshares* Ido not find any case in which* anything of the kind has ever been done* and I am at a loss to understand on what principle it could be done :" and then herefused to remove the contributor's, name. Dr Fyfe's case, 38 L. J. Ch. 785* might, however, at first sight, be treated as an authority for Pianklyn's prooosi*" tion. It appears to be the only one in. which a removal without a substitution, has been in that class of eases made. There Lord Justice Giffbrd observed— " It was said that Dr Fyfe's name should not now be removed, because-, as Btrawbridge is dead without any legal personal representative, there is no one who«e name can be substituted for bis. But a& I am of opinion that his name ought not to have been on the Hst, I must now re* move it." It must bw observed, however*, that the esses are distinguis able : therethe rightful owner could not be found,, here he is before the Court. Upon such interpretation of the Act, and in the absence of any questions of delay in making tbis application, or otherwise. I must order* Jones, juo., whoever he may be— father or son — to be removed from the list of eon* tributaries, and Mr Frederick Jfranklyn'a. name substituted in respect of the shares--10.283 to 10,485 ; the register of shareholders will he amended ac ordingly. Mr Jones is refused cot's, but >vtr Franklyn. must pay the liquidation expenses, as* sessed at £10 10*. I have interpreted the section with much diffidence, beue* an aopeat to a higher Court would, b* satisfactory.